Nw. Envtl. Advocates v. United States Envtl. Prot. Agency

• Decision Date: 24 October 2022
• Docket Number: 3:21-cv-01136-HZ
• Parties: NORTHWEST ENVIRONMENTAL ADVOCATES, a nonprofit Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, MICHAEL REGAN, in his official capacity as Administrator of the Environmental Protection Agency, and MICHELLE PIRZADEH, in her official capacity as Acting Regional Administrator Environmental Protection Agency Region 10, Defendants, and STATE OF OREGON, by and through the OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, Intervenor-Defendant.
• Court: U.S. District Court — District of Oregon

NORTHWEST ENVIRONMENTAL ADVOCATES, a nonprofit Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, MICHAEL REGAN, in his official capacity as Administrator of the Environmental Protection Agency, and MICHELLE PIRZADEH, in her official capacity as Acting Regional Administrator Environmental Protection Agency Region 10, Defendants,

and STATE OF OREGON, by and through the OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, Intervenor-Defendant.

No. 3:21-cv-01136-HZ

United States District Court, D. Oregon

October 24, 2022

James Neville Saul Lewis & Clark Law School Attorney for Plaintiff

Gus Maxwell United States Department of Justice Environment & Natural Resources Division Attorney for Defendants Environmental Protection Agency and Michelle Pirzadeh

Sadie Forzley Nina Englander Oregon Department of Justice Attorneys for Defendant State of Oregon

1

OPINION & ORDER

MARCO A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE

Plaintiff Northwest Environmental Advocates (“NWEA”), a nonprofit environmental organization, seeks clarification of the scope of review with respect to three of its four claims in this suit brought under the Clean Water Act (“CWA”) and Administrative Procedure Act (“APA”). Plaintiff also seeks leave to take discovery of Defendants Environmental Protection Agency (“EPA”) and Department of Environmental Quality (“DEQ”) with respect to Claim One, its constructive submission claim. The parties agree that review of Claim Two is limited to the administrative record. For the reasons that follow, the Court holds that the administrative record is open with respect to Claims One, Three, and Four and that the parties may supplement the record with additional documents as appropriate. The Court grants Plaintiff leave to take discovery on Claim One, but only in the form of Requests for Production.

2

BACKGROUND

This case centers on EPA's alleged failure to fulfill its duties under the CWA. In brief, the CWA requires states to assess pollution levels in their waters, rank discrete waterways in order of priority, and submit proposed Total Maximum Daily Loads (“TMDLs”) to EPA for approval. Columbia Riverkeeper v. Wheeler, 944 F.3d 1204, 1206 (9th Cir. 2019). If the states fail in these obligations, EPA must set the TMDLs. Id.

Plaintiff has four claims pending in this matter. Claim One alleges that EPA failed to review and disapprove Oregon's constructively submitted TMDLs as required by the CWA. Compl. ¶¶ 72-79. Claim Two alleges that EPA's approval of Oregon's 2012 priority ranking and prioritization schedule was arbitrary and capricious in violation of § 706(2)(A) of the APA. Id. ¶¶ 80-84. Claim Three alleges that EPA failed to determine Oregon's schedule for submitting TMDLs as required by the CWA. Id. ¶¶ 85-90. Claim Four alleges in the alternative that EPA's failure to develop a schedule for the development of TMDLs was arbitrary and capricious under § 706(2)(A) of the APA, and an unreasonable delay of agency action under § 706(1) of the APA. Id. ¶¶ 91-94. Plaintiff seeks clarification of the scope of review with respect to claims One, Three, and Four only, and seeks leave to take discovery with respect to Claim One only.

Plaintiff filed this action on August 3, 2021. Compl. This Court denied the EPA Defendants' Motion to Dismiss for Failure to State a Claim as to Claims Two, Three, and Four on April 4, 2022. Opinion & Order, ECF 15. The Court granted the State of Oregon's motion to intervene on May 6, 2022. Order, ECF 21. The EPA Defendants filed an administrative record on May 27, 2022. Admin. R., ECF 23. On July 15, 2022, Plaintiff moved for clarification of the scope of review and for leave to take discovery on Claim One. Pl. Mot., ECF 24.

3

DISCUSSION

The parties disagree on what documents and information may be included in the record in this case. As part of their conferral process, Plaintiff submitted a list of eleven topics to EPA and requested that the agency include documents falling within those topics in the record. Saul Decl. ¶ 6, Ex. 2, ECF 25. With the possible exception of the eighth topic, these topics did not identify specific documents; rather, they identified categories of documents. See id. DEQ submitted documents to EPA to include in the record. Id. ¶ 5, Ex. 1. Plaintiff requested and received from EPA an explanation of how the record was assembled. Id. ¶ 8, Ex. 3.

Dissatisfied with the state of the administrative record, Plaintiff now makes two primary arguments in support of expanding its scope. First, Plaintiff argues that, due to the nature of the claims, review is not confined to the administrative record as submitted by EPA for Claims One, Three, and Four. Pl. Mot. 8-13. The EPA Defendants argue that review is confined to the administrative record on all claims, that supplementation of the record is permissible only under narrow circumstances, and that Plaintiff has not demonstrated that such circumstances exist in this case. EPA Def. Resp. 2-17, ECF 28. Intervenor-Defendant DEQ (“Defendant DEQ”) takes no position on this issue beyond stating that if the Court permits Plaintiff to supplement the record, it should provide Defendants with the same opportunity. DEQ Def. Resp. 1, ECF 29.

Second, Plaintiff argues that it should be permitted to take discovery with respect to Claim One. Pl. Mot. 13-16. Plaintiff seeks to transform the eleven topics it previously provided to EPA into discovery requests and to take depositions of agency officials, citing to the “onesided” nature of the record as the primary justification. Id. at 13-14. The EPA Defendants respond that the existing record is sufficient and the one-sided nature of the record is not grounds

4

for discovery. EPA Def. Resp. 17-20. Defendant DEQ devotes the bulk of its brief to outlining why Plaintiff's proposed discovery is not warranted. DEQ Def. Resp. 2-16.

The Court concludes that the record is open for Claims One, Three, and Four, and that all parties may seek to supplement it with identified documents. Discovery will be permitted on Claim One, but only through Requests for Production.

I. Scope of the Administrative Record

Plaintiff provides two different bases on which it argues that review of Claims One, Three, and Four is not limited to the record as compiled by EPA. First, it argues that Claims One and Three, its CWA claims, are not restricted to the record because the CWA, not the APA, provides the basis of relief. Pl. Mot. 8-10. Second, it argues that Claim Four, its APA unreasonable delay claim, is not restricted to the record because there is no final decision and thus there can be no closed record of a final decision. Id. at 11-13. The Court concludes that the existing caselaw on agency inaction covers all three of Plaintiff's claims. It is therefore unnecessary to resolve Plaintiff's first argument.^[1]

A. Claims Challenging Agency Inaction

Claims One, Three, and Four all challenge agency inaction. The parties do not dispute that the APA's standard of review governs all three of these claims. EPA Def. Resp. 2-3; Pl. Mot. 9. The EPA Defendants argue that the APA's scope of review also applies, meaning that the Court may not look beyond the agency record. EPA Def. Resp. 4. Defendant EPA is correct that, in general, judicial review of agency decisions is limited to the agency record. San Luis &Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014). A court considering

5

evidence outside the record is more likely “‘to substitute its judgment for that of the agency.'” Id.(quoting Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980)). Courts should therefore avoid reviewing evidence outside the record, particularly when evaluating matters concerning the agency's “special expertise.” Id.

What qualifies as the “record” depends on the nature of the claim. Where the plaintiff challenges a final decision by the agency, that decision must be evaluated based on the evidence the agency considered in making the decision, and it will sink or swim on that basis. Seeid. at 602-03. In contrast, “when a court considers a claim that an agency has failed to act in violation of a legal obligation, ‘review is not limited to the record as it existed at any...